Across the internet, various groups are demanding justice for Daily Coleman, the 14-year-old girl who was allegedly raped by a popular high school football player from a well-connected family. But it’s unclear what that “justice” would actually look like. A special prosecutor has been appointed to the case, and I’m hopeful she’ll be able to shed light on all the facts. But were it not for conservative Supreme Court justices, Daisy could have had other options: She could have sued her alleged attacker under a federal cause of action established by the Violence Against Women Act. I’m writing about that in The Nation today:

Recognizing the widespread impact of gender-based violence on the lives of American women, Congress passed the Violence Against Women Act (VAWA) in 1994. It included a provision that allowed rape survivors (and other victims of gender-based violence) to sue their attackers in federal court. The logic was fairly simple: Violence against women costs the country billions of dollars in medical treatment, criminal justice and other associated costs, and prevents women from fully participating in the national economy; perpetrators of gender-based violence too often avoid criminal prosecution; and so a federal mechanism must exist for victims of gender-based crimes to get some sort of relief. VAWA meant that a victim if a gender-based crime could sue her attacker, even if a local prosecutor declined to bring criminal charges.

Even without VAWA, rape victims can sue their attackers in civil court. Tort actions are in theory decent avenues for violence survivors to pursue: you may not see your attacker go to jail, but you can be awarded damages for your ordeal. The burden of proof in civil cases is also lower, requiring a showing of fault “by the preponderance of the evidence” rather than beyond a reasonable doubt, making the kind of character assassination that rape victims often face in criminal trials a degree less influential. And while criminal cases require the state to prosecute the offender with the victim serving only as a witness, the victim is the plaintiff in civil suits, and so she has much more control in determining the course of litigation.

But winning a lawsuit against one’s attacker in civil court is a major challenge even with a criminal conviction and even harder without one, since acts of violence against women, including rape, are difficult to fit into traditional tort categories. VAWA remedied that problem by creating a specific cause of action for victims of gender-based violence.

The Supreme Court invalidated that provision in a 5-4 decision, with the conservative members of the court backing a majority opinion penned by Judge Rehnquist. The decision largely turned on the question of whether Congress had the power under the Commerce Clause of the U.S. Constitution to offer a federal civil remedy for victims of gender-based crimes. When looking at Commerce Clause cases, the court evaluates whether the activity being legislated by Congress “substantially affects interstate commerce.” That doesn’t mean that legislation has to directly impact selling goods across state lines; it just has to impact commercial activity between states. The Supreme Court has, for example, upheld federal laws regulating the meatpacking industry because even though the facilities were local, the activity impacted the “current of commerce.”

In drafting VAWA in 1994, Congress was careful to document and evaluate a series of commercial ties to the civil remedy offered to gendered violence victims. They emphasized the broad economic impact of that violence, and how systematic gender-based violence prevented enormous numbers of women from fully participating in the economy, whether that meant missing work because abuse landed them in the hospital or losing their jobs because of PTSD after a rape or simply being too afraid to go to a movie or out for a drink late at night.

The law was tested by Virginia Tech student Christy Brzonkala, who said she was raped by two classmates and pursued her claim with the university. One of the men faced no consequences. The other, who admitted he had sex with Brzonkala after she repeatedly told him “no,” was initially suspended before the administration decided suspension was too harsh a punishment. After a Grand Jury failed to find sufficient evidence to indict either man, Brzonkala sued her alleged attacker under VAWA.

The conservative members of the Supreme Court dismissed her suit. While claiming that the calculus was whether the activity regulated substantially influenced interstate commerce, which Congress clearly anticipated and detailed in the legislation, the court was instead rigidly formalistic: “Gender-motivated crimes of violence are not,” Rehnquist wrote for the majority, “in any sense of the phrase, economic activity.”

9 Responses

Jill, I want to note and expand on something that I’m sure you appreciate but that readers may not.

You said, “And while criminal cases require the state to prosecute the offender with the victim serving only as a witness, the victim is the plaintiff in civil suits, and so she has much more control in determining the course of litigation.”

There’s a lot packed into that sentence. A criminal case is a case by the lawyer for the people of the state, or the federal government, against the defendant. Prosecutors are public employees, taking policy directives from politicos, and they may care what the survivor wants, but they are not the survivor’s lawyer and don’t have to take direction from the survivor. They can prosecute if the survivor doesn’t want to; they can drop a case even if the survivor wants to go forward; they can pursue a theory that the survivor doesn’t like or agree with (as long as it doesn’t directly conflict with the survivor’s own sworn account, which practically would be fatal to the prosecution); they can call witnesses that the survivor wants left out of it or raise issues that the survivor wants left alone; etc.

After a profoundly disempowering experience, working with a lawyer who doesn’t work for the survivor and can do something the survivor says not to do could profoundly compound the sense of having no control. A lawyer working for the survivor, even on contingency, is the survivor’s lawyer, and that gives the survivor the power of a client in that relationship. Good prosecutors try to make the complaining witness feel consulted and included, but lawyers representing a plaintiff in a civil case kind of have to, because otherwise the can be fired, and because as a matter of legal ethics they don’t have the freedom of action that a prosecutor has.

Restricting the meaning of the Commerce Clause has been a conservative tactic for a long time; it’s been eight years since I posted about it here on Feministe when Alito was nominated, and it was a hot topic when I was in law school and conservatives started trying to limit Commerce Clause powers. I would think that the VAWA private right of action could be resurrected in a way that the conservatives might shrink from challenging if it only applied to rapes that affected interstate commerce in one or more of a list of specified ways that were elements of the claim — for example that the rape occurred between students at a college or university that had at least twenty percent of its student population from out of state; or between people who had gathered at a public accomodation such as a hotel, restaurant or bar that serves out-of-state patrons. Those provisions could be specific and clearly affecting interstate commerce, and yet be numerous and broad enough to afford protections to many survivors. That’s just me legislating from my keyboard, though.

Great article. Jill, do you happen to know why that aspect of VAWA wouldn’t have been legitimate under the 14th Amendment? It seems like there’s a solid argument that it’s addressing the lack of equal protection of the laws resulting from discrimination against women. I know the Court’s been hostile to that grant of authority, but VAWA seems like it’s exactly the sort of legislation contemplated by it (except to people like Justice Scalia, who seems to think that the amendment doesn’t protect women at all, but that’s a whole separate issue).

I was always under the impression that SCOTUS undermined the civil remedy provision through the whole “indirect nexus” argument. My reading of it varies from Jill’s in that I always read it as acknowledging that gender-based violence has economic impact. I’m not entirely sure they ever disputed that point. I think the distinction came down to “economic activity” vs. “non-economic activity that has economic impact.”

I certainly don’t mean to critique Jill’s actual point, which is a good one. However, I always came away from the Morrison and Lopez decisions asking whether or not, if they had been decided differently, there would be any grounds at all to limit the Commerce Clause. In theory, there are a huge number of actions that, at first glance, do not seem to impact economic activity, but that in theory could. I’ve also heard some truly cockamamie theories about what could, in theory, get resulted. For example, I’m heard some theories put forth that abortion could in theory be restricted under the Commerce Clause, because it’s availability (or lack thereof) affects the number of eventual workers and can impact overall economic growth or depression. Now, I don’t believe that to be true. However, it does make me believe that there is probably some inherent value to restricting the commerce clause in some way.

I suppose my overall question would be whether there would ever exist any other avenue outside of the commerce clause to permit victims to recover. I’m not sure I agree with Jill that the Morrison decision got it entirely wrong, but that’s for my own legalese reasons. I do question if there is a way to achieve the same impact outside of the Commerce Clause entirely, but I’m not wholly sure there is.

A butterfly flapping its wings in California can cause a hurricane in Florida. Due to the interconnected nature of well… everything, pretty much everything can be seen as impacting interstate commerce. You mentioned abortions. Well that requires entry into a medical record, which uses the internet which almost certainly crosses state lines.

IANAL, so I don’t know all the current hip interpretations of the commerce clause, but everything has gotten really interconnected.

It wouldn’t do any good in this specific case. I understand why suing an institution like a university would be useful. But why would a kid suing another kid do any good? All you would do is run up legal bills for yourself chasing someone without any assets.

(content note car accident, rape)So now what happens? Are there any avenues left for her? And people wonder why women don’t go to the police!!

This family has been through hell, I mean she was in the car that her father died in! At nine years old, then the rape, the town bullying, the house burning, her mother getting fired…

I sincerely hope Matt, and Jordon realize what they did was evil, and sincerely change. Otherwise then that, the mean, petty part of me hopes their social lives are ruined.
I’m sick of these dudebro frat boys getting away with this

You know when this happened to me (I was drugged and raped too)
my male buddies asked me if I wanted him beat up) Yes I did, but I said no. I didn’t want them to get in trouble and violence doesn’t solve anything.

OT: There was a beautiful professional picture of her father cradling her as a baby, with her two brothers flanking them. They were all in white, and the love on their faces shined thorough.
I burst out crying, knowing what would happen to the family later.

:(

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